714
Stevens, J., dissenting
killer. At all costs, Dice wanted to avoid the prosecutor "slash[ing] me to pieces on rebuttal," as "[h]e's done . . . a hundred times." State Postconviction Tr. 123. Dice hoped that by not making a closing statement, the prosecutor would "kind of follo[w] me right down the primrose path." Id., at 107. Of course, at the time Dice waived closing argument, the aggravating circumstances had already been proved, and Dice knew that the judge would instruct the jury to return a verdict of death unless the jurors were persuaded that the aggravating circumstances were outweighed by mitigating evidence. Perhaps that burden was insurmountable, but the jury must have viewed the absence of any argument in response to the State's case for death as Dice's concession that no case for life could be made. A closing argument provided the only chance to avoid the inevitable outcome of the "prim-rose path"—a death sentence.13
Both of the experienced criminal lawyers who testified as expert witnesses in the state postconviction proceedings refused to state categorically that it would never be appropriate to waive closing argument, to fail to put the defendant on the stand during the penalty phase of the trial, or to offer no mitigating evidence in the penalty phase. Both witnesses agreed, however, that Dice's tactical decisions were
13 In his postconviction testimony, Dice offered another reason for waiving closing argument. He claimed that the State, in its penalty phase case, had "screw[ed] up the aggravated circumstances" by arguing to the jury an aggravating factor that was unsupported by the evidence—that the lives of two or more people other than the victims were endangered by the defendant. State Postconviction Tr. 108. Dice testified that he was concerned that if he made a closing argument, the State might realize its mistake and correct the error in its rebuttal closing argument. See id., at 103-104. Not only is Dice's explanation incredible, but, unsurprisingly, Dice's "strategy" did not work "perfectly," as Dice claimed it did, id., at 103, because the State Supreme Court found any error concerning the aggravators to be harmless, State v. Cone, 665 S. W. 2d 87, 95 (Tenn. 1984). More importantly, such a "strategy" is never appropriate; counsel's hope for an appellate victory concerning one trial error cannot justify abdication of his duty as advocate for the remainder of the proceeding.
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